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1979 Supreme(Bom) 135
IN THE HIGH COURT OF BOMBAY
B.A. Masodkar R.L. Aggarwal, JJ.
Nabi Mohamad Chand Husain others.... Appellants.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 27 of 1975, decided on 17-7-1979.
Advocates appeared :
T.Godwala with T.C. Philipose, for appellants-accused Nos. 1 to 4.
S.S. Parkar, P.P., for State.
The admissibility of statements made by accused persons under sections 27 and 30 of the Evidence Act.
Headnote:
The Court held that the statement of accused No. 3, Exhibit 17, could only be used against accused No. 3 and the information containing incriminating involvement of accused No. 1 is not rendered admissible under section 27 against accused No. 1. It being not a confession proper, section 30 does not help the prosecution in this regard. Therefore, the reference in Exhibit 17 to accused No. 1 to the effect "I was given two knives by accused No. 1", is clearly inadmissible against accused No. 1. Excluding that portion, what survives of the statement is that accused No. 3 "handed over knives to one Shakin Ahmed. I will point out the said place and knives". This information led to discovery, for the police were taken to the place of P.W. 12 Shakin Ahmed and eventually two knives were taken charge of by the police. The fact that article 9 had blood-stains of the same groups as that of the deceased renders the information proving an incriminating circumstance, but that, in our view, is not enough to implicate accused No. 3 for the offence of abetting the crime involving criminal assault on Halim and causing homicidal death of Eklat. On the prosecution case itself, the circumstance is equivocal and is suggestive of coming into possession of the weapon used by some one lease. Unless other evidence is satisfactory about abetment it will be risky to uphold the conviction of this accused for abetment of the principal offence.
Fact of the Case:
The case involved the stabbing of two individuals, Halim and Eklat, by accused Nos. 1 and 2. Accused Nos. 3 and 4 were also charged with abetting the crime. The prosecution's case was based on the testimony of four eyewitnesses, the discovery of two knives used in the crime, and the bloodstains found on the clothes of the accused.
Finding of the Court:
The Court found that the evidence of the eyewitnesses was credible and established the guilt of accused Nos. 1 and 2. However, the Court held that the statement of accused No. 3, which implicated accused No. 1, was inadmissible against accused No. 1. The Court also found that the evidence against accused Nos. 3 and 4 was insufficient to establish their guilt beyond a reasonable doubt.
Issues: 1. Whether the statement of accused No. 3, Exhibit 17, was admissible against accused No. 1. 2. Whether the evidence was sufficient to establish the guilt of accused Nos. 3 and 4.
Ratio Decidendi: 1. The Court held that the statement of accused No. 3, Exhibit 17, was inadmissible against accused No. 1 because it was not a confession proper and therefore did not fall within the ambit of section 30 of the Evidence Act. The Court also held that the statement was not admissible under section 27 of the Evidence Act because it did not lead to the discovery of any incriminating evidence against accused No. 1. 2. The Court held that the evidence against accused Nos. 3 and 4 was insufficient to establish their guilt beyond a reasonable doubt. The Court noted that the circumstances relied upon by the prosecution were equivocal and could be interpreted in a manner that did not implicate accused Nos. 3 and 4 in the crime.
Final Decision: The Court dismissed the appeals of accused Nos. 1 and 2 and upheld their convictions. The Court allowed the appeals of accused Nos. 3 and 4 and set aside their convictions and sentences.
B.A. MASODKAR, J.:---These four appellants question their convictions under section 302, 326 and 506 of the Indian Penal Code as far as accused No. 1 Nabi is concerned, with the aid of section 34 under sections 302 and 326 and section 506 of the Indian Penal Code as far as accused No. 2 Imtiaz is concerned and further with the aid of section 109 for the offences under sections 302 and 326 of the Indian Penal Code as far as accused No. 3 Nanhe and accused No. 4 Mohomed are concerned.
2. The additional Sessions Judge, Bombay, who tried these accused, recorded these convictions arising out of the prosecution case that during the night between November 12 and November 13, 1973, these four accused were involved in an incident that took place in Tosa Bakery situated in Vijaywadi Lane, Girgaum, Bombay. At Exhibit 4 is the map that delineates the locale of the place of the occurrence. The prosecution alleged that one Nissar Ahmed (P.W. 4) was working as a mistry, while Sorab Irani (P.W. 5) was doing supervisory work in Tosa Bakery. Accused Nos. 2 and 3 were working in a nearby bakery called Orient Bakery, while accused Nos. 1 and 4 were on visiting terms with them. It was suggested by the prosecution that sometime before the date of the incident, one Jabarali left Bombay and entrusted his work of distribution of breads to accused No. 2. Accused No. 2 in the course of the work was required to collect breads from Tosa Bakary and it was suggested that during the absence of Jabarali accused No. 2 collected breads but did not pay for the same and it was Jabarali who had to pay the amount of Tosa Bakery. Again, when Jabarali left in October 1973 for his native place, he did not entrust the work to accused No. 2, but entrusted the work to P.W. 4 Nissar Ahmed who had engaged two persons by name Noorali and Rahmatali to look after the work of Jabarali. This is said to be the spark providing for the eventual violence. Whatever may be the history earlier, what happened on the relevant date, that is on the night between Nov. 12 and 13, 1973, is that as Nissar Ahmed had finished his work and was resting on a cot in the verandah of Tosa Bakery, all the accused came and out of them accused Nos. 1 and 2 stood on the road and gave a call to Nissar Ahmed to come out. As Nissar Ahmed woke up and went near the steps of the verandah, accused No.1 questioned him about his dispute obviously with regard to jabarali entrusting the work of distribution of breads and further threatened that unless the dispute was settled then and there, they would not leave the place. Nissar Ahmed denied to have any dispute and suggested that if at all there was any such dispute, they should come the next day in the morning. Upon this, it was alleged, accused Nos. 1 and 2 took out knives which the prosecution suggests are the same as articles 9 and 10. As soon as the knives were taken out, both the accused rushed at Nissar Ahmed but Nissar Ahmed retraced himself and went inside the bakery shouting by the name of Mohomed Halim (P.W. 3). Mohomed Halim who was sleeping in the bakery woke up and came out and saw accused Nos. 1 and armed with knives. He, apprehending a fatal assault, picked up an iron bar and dealt a blow on the head of accused No. 2 Imtiaz. Accused No. 2 held the iron bar after the receipt of the blow and just at the time accused No. 1 Nabi stabbed Halim on the right side of his chest by means of the knife which was in his hand. As Halim shouted "Mar Dala, Mar Dala", one Eklat, who was sleeping on a heap of stones by the side of the steps that lead to verandah of the bakery, also work up. Accused No. 1 then turned to Eklat and with the knife, which was in his hand, dealt a blow on Eklats stomach. Eklat fell down as a result of the knife blow. When this assault was going on, it was alleged, accused Nos. 3 and 4 were giving shouts "Maro Sale Ko, Maro Sale Ko". Seeing that Halim and Eklat had received injuries, all the accused ran away from the place. Informa
